Brexit: contingency planning and powers

Published Thursday, March 21, 2019

Media reports have speculated on whether the Government might be preparing to use its emergency powers conferred by the Civil Contingencies Act 2004 to manage various problems commentators have suggested may emerge after Brexit, particularly if there is no deal.

This briefing looks at emergency planning in the UK and specifically at the how emergencies are defined, how the Government may deploy its emergency powers to deal with them, and how this relates to no-deal planning.

What emergency powers does the Government have?

The statutory framework for planning for and dealing with civil contingencies derives from the 2004 Act. Under Part 2 of the 2004 Act, the Government has the power to make emergency regulations, as outlined in the Act’s Explanatory Notes, and so this briefing focuses primarily on those powers.

Military aid to the civil authorities

The Defence Secretary has said 3,500 troops are held in readiness to support any Government department with contingency needs but has rejected suggestions there are plans for military personnel to be used for public order post-Brexit. Nearly 30 military planners have been posted to other departments to assist with contingency planning and the MOD has formally issued a Call-Out order to call Reservists to full-time service ‘in support of Government contingency planning for a no-deal exit’.

There is a clear process in place for deploying the armed forces in the UK if requested by local or civil authorities, known as Military Aid to the Civil Authorities (MACA). Ministerial approval is required for any request for assistance from other Government departments or civil authorities.

The legal authority to use Service personnel in operations under Military Aid to the Civil Authorities (MACA) is governed by the 2004 Act and the Emergency Powers Act 1964 (Section 2). In addition, service personnel can deploy under the Royal Prerogative for military tasks.

Civil contingency planning for a no-deal Brexit

What has the Government said so far?

In a letter in April 2018 to Meg Hillier MP (the chair of the Public Accounts Committee), Philip Rycroft (the Permanent Secretary at the Department for Exiting the European Union) said that the Cabinet Office had 10 workstreams relating to exit, one of which related to civil contingencies. Likewise, in response to a topical PQ in September 2018, the Cabinet Office Minister David Lidington said that the Civil Contingencies Secretariat in the Cabinet Office was taking “an active part” in contingency planning.

Media reports in late January 2019 suggested that Ministers were considering use of emergency powers, possibly including martial law, to deal with potential civil unrest after Brexit.

Soon after this, Sir Mark Sedwill (Cabinet Secretary and National Security Adviser) took a different line in evidence to the Joint Select Committee on the National Security Strategy. He dismissed the media talk of martial law in the event of no deal. Asked if there might be emergency regulations, he drew attention to Part 2 of the 2004 Act, which provides for certain emergency powers and which might, he said, be a “bridging solution”, where (for example) secondary legislation had not gone through or powers were unclear, although there was no expectation that it would need to be used. Emergency powers would (he suggested) be used only for unforeseen situations – foreseeable contingencies should be addressed through the usual primary or secondary legislation. He referred to Parliament’s “checks and balances”. When asked how long it might take, to put in place all the arrangements that would be needed, so as not to require use of the 2004 Act in the event of a no-deal Brexit, Sir Mark Sedwill said that the Government was doing all the contingency planning that it could, but there would be a “significant economic and indeed logistic impact” immediately after a no-deal Brexit (were that to happen) and then in the months afterwards.

Operation Yellowhammer is the name by which some elements of departments’ contingency planning (coordinated by the Civil Contingencies Secretariat) are known. In March 2019, the National Audit Office published its report on Operation Yellowhammer, drawing attention to the scale of contingency planning required, in the number of areas of risk and number of bodies which might be involved in any emergency response.

The Cabinet Office’s guidance on the UK central government response to emergencies identifies three levels of emergency: significant emergency (level 1), serious emergency (level 2) and catastrophic emergency (level 3). Only the last of these (the guidance suggests) might require use of the 2004 Act’s emergency powers provisions. The guidance goes on to say that the central response framework, including the Cabinet Office Briefing Rooms (COBR), would be activated in the event of a level 2 or 3 emergency. It was reported in March 2019 that COBR had taken control of no-deal planning and would be implementing contingency measures from 24 March 2019.